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Bullcoming v. New Mexico Resource Page (Introduction and Overview)

About The Bullcoming v. New Mexico Resource Page

The Bullcoming v. New Mexico Resource Page provides background and key links on this significant Confrontation Clause case decided by the U.S. Supreme Court.

On June 23, 2011, in a 5 to 4 opinion authored by Justice Ruth Bader Ginsburg, the Supreme Court held that under the Confrontation Clause, the surrogate testimony of a second forensic analyst, who did not observe or review the original blood alcohol content results, was inadmissible; specifically, the defendant has the right "to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist." Bullcoming v. Mew Mexico, 564 U.S. __, 131 S.Ct. 2705 (2011) (No. 09-10876). In addition to the overview below, other information on the Bullcoming v. New MexicoResource Page case includes
Key Briefs and Other Materials, and coverage in the Federal Evidence Blog.

Issue Presented

Whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a nontestifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform or observe the laboratory analysis described in the statements.

Summary For: Bullcoming v. New Mexico (No. 09-10876)

Summary Facts: Defendant Bullcoming rear-ended a stopped vehicle. When he learned that the police had been contacted, he left the scene purportedly to go to the restroom. The responding officer located the defendant who exhibited signs of intoxication. The defendant was brought back to the accident location. The defendant admitted that he had one drink early in the morning. After he failed field sobriety tests, he was arrested. At the station, he refused a breath test. A search warrant was obtained for a blood alcohol test. The test confirmed a blood alcohol content of 0.21gms/100ml, exceeding the legal limit of 0.08gms/100ml. At trial, the government admitted a Report of Blood Alcohol Analysis (State’s Exhibit 1) concerning the defendant’s blood alcohol level. The forensic analyst who prepared the report did not testify. Instead, his supervisor did. The supervisor “testified that the instrument used to analyze Defendant's blood was a gas chromatograph machine. The detectors within the gas chromatograph machine detect the compounds and the computer prints out the results.” In response to the prosecutor’s question whether "any human being could look and write and just record the result," he responded affirmatively. During cross-examination, “he also testified that this particular machine prints out the result and then it is transcribed to Exhibit 1. Both the nurse who drew the blood and the officer who observed the blood draw and who also prepared and sent the blood kit to SLD, testified at trial and were available for cross-examination.” The jury convicted the defendant of of aggravated DWI, a fourth-degree felony. He was sentenced to serve two years in prison. SeeNew Mexico v. Bullcoming, 147 N.M. 487, 226 P.3d 1 (Feb. 12, 2010) (No. 2010-NMSC-007).

Claim On Appeal: On appeal, the petitioner claimed his Confrontation Clause rights were violated by the use of a surrogate analyst witness who was permitted to introduce the testimonial statements contained in a forensic report of a non-testifying analyst. The testifying analyst "did not perform or observe any of the laboratory tasks or analysis described in the statements.”

Lower Court Action: The New Mexico Supreme Court affirmed the conviction. The state supreme court held: "Although the blood alcohol report was testimonial, we conclude that its admission did not violate the Confrontation Clause, because the analyst who prepared the report was a mere scrivener who simply transcribed the results generated by a gas chromatograph machine and, therefore, the live, in-court testimony of another qualified analyst was sufficient to satisfy Defendant’s right to confrontation." New Mexico v. Bullcoming, 147 N.M. 487, 226 P.3d 1, 4 (Feb. 12, 2010) (No. 2010-NMSC-007).

Decision: On June 23, 2011, in a five to four decision, the Supreme Court held that the surrogate testimony of a second forensic analyst, who did not observe or review the original blood alcohol content results, was inadmissible; specifically, the defendant has the right "to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist." Bullcoming v. Mew Mexico, 564 U.S. __, 131 S.Ct. 2705 (2011) (No. 09-10876).